11(b) and the right to be tried within a reasonable time

Criminal Courts across the country are becoming increasingly more crowded and delayed proceedings are an ongoing concern. Too few judges and too little court time, combined with increasingly complex prosecutions, have created an environment where it is not uncommon for an accused person to wait a year or more to have their day in court. Nevertheless, it is an accused’s right under Section 11(b) of the Charter to have their matter tried within a reasonable amount of time, and thankfully, the Supreme Court of Canada has recently provided some guidance on what constitutes reasonable in the case of R. v. Jordan.

The Jordan decision was rendered on July 8, 2016. In that decision, a 5-4 majority of the Supreme Court disagreed with a lower ruling from the BC Court of Appeal, and ultimately quashed the accused’s convictions and entered a stay of proceedings. The majority analysed a delay of 49.5 months from laying of charges to the completion of trial and found that delay to be unreasonable.

The majority decision established a presumptive ceiling of 18 months for criminal cases in provincial courts, and 30 months for cases in superior courts, or cases tried in provincial court after a preliminary hearing. If a case goes beyond these time limits then the delay is presumptively unreasonable.

Any delay that is caused by defence counsel, or waived by defence counsel, does not count towards the presumptive ceiling, however, any other delay that is caused by the Crown, the courts, or the police counts.

Nonetheless, the 18 and 30 month ceilings are not absolute and there are two pathways that the Crown can utilize to rebut the presumptive ceiling:

  1. They can show a discrete event occurred that was unforeseen and unavoidable (ie: a witness who is admitted to hospital on the day of trial); or
  2. They can show that the case was particularly complex and an inordinate amount of preparation time was needed.

If the Crown is unable to establish one of these exceptional circumstances then the delay is unreasonable, and the charges will be stayed.

There is also a mechanism in place for an accused to establish that a delay was unreasonable even when their case concluded prior to the 18 or 30 month ceilings. An accused can further establish unreasonable delay by showing that:

  1. It made a sustained effort to accelerate the proceedings; and
  2. The case took longer than it reasonably should have.

The ripple effect of the Jordan decision will no doubt be felt across the country, and it will be interesting to see what happens. It is possible that all matters, regardless of complexity, will devolve closer to the 18 and 30 month ceilings as Crown resources are directed towards more complex matters and fewer resources are initially available for straightforward ones. However, it is equally possible that the ceilings will force the Crown to allocate resources more efficiently right off the bat with the very real danger of the ceilings creeping up quicker than expected. Nevertheless, it is encouraging to see the Supreme Court providing direction on the important matter of Section 11(b) rights.